A. LETTER 


TO THE 


cy 



resident 0f t|e Witifei Ufa) 


IN REPLY TO THE 


ATTORNEY GENERAL’S REPORT 


ON THE 


licsolution of tire legislature 


OF THE 


STATE OP CALIFORNIA. 






♦‘If a son shall ask bread of any of you that is a father, will he give him a stone? or if he 
ask a fish will he for a fish, give him a serpent ? 

“ Or if he shall ask an egg, will he offer him a scorpion ?” 


N'ero^ork : 

PUDNEY & RUSSELL, PRINTERS, 

No. 79 John Street 


1860. 




























































A. LET T E R 


TO THE 


Jjnsikttt of tjje Itiritei States, 


IN REPLY TO THE 


ATTORNEY-GENERAL’S REPORT 


ON THE 


llcsfllitfioti of the Cegishiturc 


OF THE 


STATE OF CALIFORNIA. 


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cr*y Ct, 


“ If a son shall ask bread of any of you that is a father, will he give him a stone? or if he ask 
a fish, will he for a fish give him a serpent?” 

“ Or if he shall ask an egg, will he offer him a scorpion ?” 


I ^ 


U. S. A, 


of Wi 


/ y 


N t vo - $ o r k : 

PUDNEY & RUSSELL, PRINTERS, 

No. 7 9 John Street. 


1860 . 



• I 











TO THE 


PRESIDENT OF THE UNITED STATES. 


Sir : Before you render your decision on the appli¬ 
cation of the legislature of California for a discon¬ 
tinuance of the action against the New Almaden 
miners, I respectfully beg leave to submit some 
observations in reply to the Report of the attor¬ 
ney-general, which is now before you. The case is 
one of unusual magnitude and interest ; one of 
the sovereign States of the Union, speaking through 
its legislature, respectfully invokes your action, in a 
matter which concerns most intimately its whole 
population, and affects, directly and remotely, all its 
productive energies. The attorney-general, in advis¬ 
ing you to deny this request, has entirely misappre¬ 
hended its nature, and urged you to refuse that which 
you were never asked to grant. The mistake made 
by him, and the false issue which he thus forces on 
the people of California, has been too readily accepted 
by the public press, and by the advocates of the con¬ 
flicting private interests involved, and thus, in the 
din and clamor of a private controversy, the rights 
and interests of the State of California, whose repre¬ 
sentatives are meantime absent from the scene of 
strife, are utterly lost sight of or misrepresented. 

In a case which concerns so large a body of people, 


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4 


which affects the vital interests of a State to which I 
have owed allegiance, and am still strongly attached, 
by ties of interest and of kindred, I feel that it cannot 
be presumptuous to endeavor to correct such an error; 
and that neither the magnitude of the cause, nor the 
exalted dignity of the tribunal, nor his own obscurity, 
should deter the humblest citizen from speaking out 
in favor of truth and sound policy. Such a cause can 
neither lose nor gain from the position of its advo¬ 
cate : and I therefore feel warranted in addressing 
you, as a simple volunteer, on behalf of the distant 
and injured State of California. 

I have said that the attorney-general has mis¬ 
taken the meaning of the resolution. Read it. It 
recites— 

m 

1. That from all Congressional land legislation, the mining lands 
have been carefully excepted; 

2. That the object and effect of this exclusion have been to encour¬ 
age mining on the public lands, whereby the prosperity of California 
has been enhanced and developed ; 

3. That the State laws of California protect the right of the miner 
on public land; 

4. That, by the State law, possession, according to local regula¬ 
tions, constitutes the tenure by which mining properties are held; 

5. That it would be oppressive and a grievance to the people of 
the State to hold their mines at the will of the federal government ; 

C. That no distinction should be made between mines of gold, and 
of other metals ; 

7. That the stoppage of the New Almaden mine by injunction, 
at the suit of the United States, has been productive of injury, and 
u is the exercise of a power dangerous to the mining interests of the Stated ’ 

For these reasons it was 

u Resolved, by the Assembly [the Senate concurring ), That our Rep¬ 
resentatives in Congress be requested, and our Senators instructed, 


5 


to use their best endeavors, at the proper department at Washington, 
to procure an abandonment oj the suit wherein said injunction wa 3 
issued, if the same can be done without determining the ultimate 
rights to said mine.” 

These are grave and serious reasons of public policy, 
and are entitled to serious consideration, and a re¬ 
spectful answer. Yet, although the resolution is set 
forth at length in the attorney-general’s report, he 
seems to have most strangely misconceived or lost 
sight of its meaning. It does not ask any court to 
dissolve the inj unction in question; it does not ask 
any one to solicit the court to do so. The injunction 
is mentioned simply to point out and identify the suit 
referred to, and which suit you are asked to withdraw 
and abandon —not for the benefit of private claimants 
or defendants—such a conclusion is expressly nega¬ 
tived by the proviso, but because the bringing of the 
suit is in effect an uprooting of the internal policy 
and legislation of the State; because it tends to un¬ 
settle long-established rules of property sanctioned by 
local law; because it is wrong and impolitic in itself; 
because it is destructive to the interests of California, 
and the assertion and exercise of a power dangerous 
to the State. 

ITence, when Mr. Attorney tells you that the grant¬ 
ing or dissolving of an injunction is the function of a 
court, and when he dilates on the impropriety of seek¬ 
ing, by any external solicitation or pressure, to influ¬ 
ence a court of justice in its decisions, his observa¬ 
tions, however just in themselves, have no reference 
to the question in hand. They are simply from the 
purpose. Having so strangely misapprehended the 
question proposed to him, it is not remarkable that 


6 


he arrives at a conclusion adverse to the desire of the 
legislature. Once his attention is called to this error, 
it is not to be doubted he will reconsider the matter, 
and, I trust, come to a different conclusion. To do so, 
he will not have to retract any opinion already ex¬ 
pressed, nor need he fear any charge of inconsistency, for 
his report has not even approached, much less discussed 
the question. It is wholly occupied in proving, what 
nobody has denied, that you can neither decree nor 
dissolve an injunction, and that you should not at¬ 
tempt, by any interference or action of yours, to influ¬ 
ence the decisions of a court of justice. 

The legislature of California, though not, as Mr. ' 
Attorney remarks, elected with special reference to their 
knowledge of the law, may, without violence to the 
theory of republican governments, be supposed to have 
been elected with reference to their knowledge of and 
devotion to the interests of their constituents. In fact, 
as they embody the legislative power, they must, as a 
logical necessity, he deemed to embody also the legisla¬ 
tive wisdom of the State. Hence, limiting the proposi¬ 
tion to what affects their own State, there is no exag¬ 
geration in the axiom laid down by Mr. Attorney, that 
whatever the legislature asks in that respect is to be 
;presumed clearly right. He has recognised that the 
onus is on him to show it to be clearly wrong, and 
having failed to do so, he must admit that the 
original presumption remains good, and the request 
of California “ should be granted with alacrity.” 

Mr. Attorney-General has assumed throughout his 
report that the injunction issued in the suit is the 
grievance complained of, and the dissolution of it the 
object sought by the legislature. That they are igno- 


t 

rantly asking you to dissolve it, or, if not that, then 
to use whatever influence you may have with the 
federal court to procure its dissolution. 

The first of these requests, had they made it, would 
have been as preposterous as the second would have 
been wicked. They asked neither. Nor is there any 
justice in the assumption intimated by the attorney- 
general—inadvertently, I hope, and not deliberately— 
that they designed indirectly to influence by their 
resolve the court itself. The injunction, sir* is com¬ 
paratively a small affair—a mere incident. True, it 
throws some hundreds of industrious people out of 
employment, hut there are no beggars in California, 
thank God, and these people will not starve. True, it 
raises the price of quicksilver, and thus taxes heavily 
the great industry of the State; hut this could well be 
borne until the advent of that “ good time a-coming,” 
which “ will yet make all things even.” These things, 
therefore, though distantly alluded to in the Tth sub¬ 
division of the preamble, are not the moving consider¬ 
ations of the resolution. Were they all the public 
injury complained of, the occasion would not have 
been worthy of legislative intervention. The legisla¬ 
ture, therefore, does not complain of the injunction, or 
ask its dissolution, and this disposes at once of the 
whole argument of the attorney-general, as based on 
a gross error of fact. 

The act by which the people of California feel ag¬ 
grieved, and which their legislature might well deem 
an occasion demanding remonstrance from them, was 
and is the adoption of a policy by the government 
which strikes at the root of the prosperity of the State, 
and threatens to paralyze its chief industry. For 




8 


fourteen years back the mass of the population of that 
State have been engaged in mining on the public 
lands, subject to no tax or restraint from the govern¬ 
ment. From all the land legislation of Congress the 
mining lands have been studiously excluded: by the 
wise and masterly inaction of Congress and the Execu¬ 
tive, the State has attained in ten years a growth 
unparalleled in history. San Francisco is now the 
fourth commercial port in the Union, and will ere long 
be the second. California has a population double 
that of States ten years her seniors in the confederacy, 
and polling more votes in proportion to their numbers 
than any State in the Union. In energetic and daring 
enterprise which only knows obstacles to overthrow 
them, and in the vigor of body and intellect which 
springs from a perfect manhood, they excel any equal 
population on the globe. The policy which has devel¬ 
oped this extraordinary growth may well be regarded 
by them as essential to their welfare, and it is natural 
that their legislature should promptly take alarm at 
the first indication of a change. 

Millions of dollars have been invested in California 
in mining and its accessories, such as ditches, canals, 
dams, and the like, all on the public lands. Capital 
is invited from abroad for the'construction of similar 
works, and the security offered for it is the settled 
policy of the government, that mining, and all its in¬ 
cidents, shall, on the public lands, be free. The confi¬ 
dence inspired by the hitherto settled adherence to 
that policy has received a rude shock from a suit 
brought by the attorney-general to arrest the oper¬ 
ations of the New Almaden miners, which suit is based 
on the allegation that they are mining on public land, 


9 


and on the principle, now first asserted, that to mine 

AND REMOVE THE ORE FROM PUBLIC LAND IN CALIFOR¬ 
NIA is waste, restrainable, by injunction, at the 
suit of the United States. It is this principle 
which is dangerous and alarming to California. The 
suit against the New Almaden miners is too evidently 
the commencement of a new and retrograde policy 
by the general government. On nothing less can it 
he justified for a moment. Enemies, and the un¬ 
charitable, account for the attorney-general’s con¬ 
duct in bringing it, by insinuations of personal 
enmity, favoritism, or interest, hut you cannot accept 
that explanation of it, nor have the legislature of 
California been so uncharitable or discourteous as 
to suggest or assume it. They trace his public con¬ 
duct to motives of public policy. They see that, in 
contemplation of law, the prosecution of this suit 
means, and inevitably must mean, a total change of 
government policy, on a subject, to them all-import- 
ant ; that it inevitably foreshadows the intention 
henceforth to assert the right and duty of the govern¬ 
ment to restrain mining on all the public lands of 
California as waste; and they see in the inauguration 
of this new policy a speedy farewell to her hitherto 
unexampled prosperity and growth. 

Hence it is that the legislature addressed itself to 
the federal government, and asked, not that the in< 
junction be dissolved, but that the suit which initiated 
this destructive policy be abandoned ancl withdrawn 
forever . 

The dissolution of this injunction, comfortable and 
satisfactory as it might be to the individual miners, 
would not content, nor even concern, the people of 


10 


California. The suit, asserting, as it does, a change of 
policy on the part of government, on a subject of 
such vital concern, is in itself a standing menace to 
ALL THE MINING ENTERPRISES OF THE STATE, aild the 

people feel that while it remains in court, not one dol¬ 
lar of capital from abroad can be induced to seek 
profit in their development. 5 ^ These are, in brief, the 
reasons which moved the legislature, as indicated in 
the preamble, to their resolve, and they are reasons, 
the importance of which cannot well be exaggerated. 

“An injunction,” says the attorney-general, “can 
only he decreed by a court; to dissolve it is not less ex¬ 
clusively a judicial function.” This is perfectly true ; 
and it is equally true that “ an action can only he in¬ 
stituted by a plaintiff, and to withdraw it is no less 
exclusively that plaintiff’s function.” The attorney- 
general has erred in supposing that the legislature ask 
a dissolution of the injunction, and hence his censure 
of their application to you in the premises is un¬ 
founded. They do ask an abandonment of the suit, 
and they rightly apply to you, Mr. President, who 
alone , as plaintiff, can direct its discontinuance. 

The attorney-general makes other mistakes, quite 
as serious as the misapprehension I have adverted to. 
He confounds the lively controversy he is now enjoy¬ 
ing with the Mexican claimants of the New Almaden 
mine, and their friends aud advocates, with the re¬ 
monstrance of the people of California against a policy 
destructive of their rights and interests. He goes 
into a lengthy discussion as to the title of the land in 
which the mine lies, the Mexican grants affecting 


* Not less than $60,000,000 of English capital alone has been up 
to this time invested in quartz mining. 



11 


it, &c., and forgetting that it is not the mine-owners 
who here address you, nor anybody in their behalf, hut 
the legislature of the State ; that they discuss, not his 
private controversy with these gentlemen, hut a grave 
and important question of public policy, he says: “ The 
effort of the parties, their agent and friends, to sink 
the question of title, is a strong moral circumstance 
against them.” What parties ? What agent? What 
friends ? Is it possible that these words have been 
deliberately written of the legislature of a sovereign 
State, by the first law officer of the government, and 
in an official communication to the President ? Has 
California sunk so low in your estimation that such 
unworthy motives may he deliberately laid at the 
door of her legislature, by a cabinet officer, without 
rebuke? If not, the only escape or apology for the 
attorney-general or yourself is a confusion of ideas on 
his part. He has so long contended with giants and 
enchanters in this New-Almaden controversy, that, like 
Don Quixote’s, his* imagination converts wind-mills 
into similar foes, and leads him to rip open the wine¬ 
skins of his friendly host, in his phrenzy to shed the 
blood of his enemies. 

The legislature of California are not to be set down 
as the friends or agents of any man or set of men, nor 
do they seek to sink the question of title. To assert 
and vindicate the principle and policy they contend 
for, they must and do assume the title to be in the 
United States. That is the very gist of their com¬ 
plaint. The private controversy as to title is indiffer¬ 
ent to them, and they expressly ignore all interest in 
it. Californians claim the right to mine on any land, 
public or private. The mine, with them, belongs to 


12 


the discoverer and worker, no matter who owns the 
land. Such has been the law of California since it 
was part of the dominions of Spain—ever since it 
had Jaws. It has been tacitly acquiesced in so far as 
the public lands are concerned by five successive Con¬ 
gresses, and your two immediate predecessors in the 
Presidency. Long experience has demonstrated its 
wisdom, and the legislature of California protests 
earnestly against any action of the general govern¬ 
ment in conflict with it. 

Nor will that legislature, or the people of that State, 
he diverted from this remonstrance and protest by the 
plausible insinuation in the attorney-general’s report, 
that the individuals against whom he has levelled 
this experimental blow, are of had character, unwor¬ 
thy of favor, land forgers, perjurers, contumacious 
aliens, and the like. If they have committed crimes, 
there are laws for their punishment, and they are 
men well known and easily found. The denial of a 
right to mine on the public land is not a punishment 
known to the law, and cannot he tolerated. It would 
necessarily he arbitrary in its character, depend simply 
on the will of the executive officer, and in enforcing 
it, judgment and sentence would of necessity (as in 
the Almaden case) precede accusation and trial. The 
people of California will not hold their right to mine 
on the public domain under any tenure so frail and 
degrading as a certificate of good character from any 
federal officer, no matter how exalted. Many bad 
men might obtain such, and many good men be re¬ 
fused it. 

Nor is alienage a disqualification to mine. Thou¬ 
sands of aliens are constantly employed in it, among 



whom are the numerous Chinese, to whom the courts 
even deny the right to become citizens. The industry 
of the miners is the life-blood of the community, and 
whether they toil for a pittance or realize a fortune, 
the State, which is enriched by their labors, traces all 
her prosperity to the principle of free mining on the 
public lands. 

The ingenious suggestion at the end of Mr. Attor¬ 
ney’s report, that the mine should be given away to 
American citizens, has the merit of novelty, and is 
at first sight plausible; but I fear, Mr. President, it 
will be found impracticable. On the principles indi¬ 
cated in the report it would clearly have to he given 
to the most deserving. How shall he be found ? 
How judged on his merits ? Shall his political prin¬ 
ciples or religious convictions he considered, or only 
his moral conduct or mining skill ? Shall “ complex- 
ional disabilities” he regarded in the proposed “ shak¬ 
ing of the superflux,” or shall it he distributed to 
black and white alike ? IIow if a man be a good 
democrat, but an unskilful miner ? 

You must long since have realized the embarrass¬ 
ment of distributing the patronage — collectorships, 
marshalships, consulships, &c.—already at your dis¬ 
posal. The offices you have bestowed have made you 
hosts of enemies, and not a few ungrateful friends, 
besides subjecting you to solicitation, ever disagreeable 
to a generous mind. Your vigorous constitution has 
happily withstood so far the importunity for patronage 
and preferment which is said to have hastened the 
death of two of your distinguished predecessors. But 
if you had in addition to “ shake the superflux” of 


14 


this rich fifteen million California plum to the most 
deserving American citizen, one might well fear that 
even your tried powers would yield under the heavy 
task, and that you would give up the ghost, deplor¬ 
ing, like Midas, the possession of a source of wealth 
bringing such endless tribulation in its train. 

The policy of free mining on the public lands, Mr. 
President, has not only been highly beneficial to Cali¬ 
fornia, hut, by giving rise to a vast production of gold, 
has exercised a potent influence on the industry and 
commerce of the world. That policy has more than 
the tacit acquiescence of Congress ; express provisos 
in the extension of the general land system to Cali¬ 
fornia, have protected it. It is conformable to the 
system of land tenures in the Slate, which Congress, 
as a proprietor, is hound to respect. The legislature 
and the people of California do not think that a policy 
of such moment and so sanctioned should he changed, 
or subject to change, at the arbitrary discretion of any 
federal executive officer. They have, through their 
delegation in both houses of Congress, addressed you 
a respectful remonstrance and protest against the 
attempt by this New Almaden suit to do so. They 
are entitled to a respectful and pertinent answer. To 
put them off by telling them that you cannot consci¬ 
entiously attempt to influence the decision of a court of 
justice, which alone can grant or dissolve an injunc¬ 
tion, is not to answer, but to insult them by a mere 
shuffle and evasion. 

I am, sir, 

Most respectfully, 

Your obedient servant, 

John T. Doyle. 




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